Academic journal article Columbia Journal of Gender and Law

Deconstructing the Body: Transgender and Intersex Identities and Sex Discrimination - the Need for Strict Scrutiny

Academic journal article Columbia Journal of Gender and Law

Deconstructing the Body: Transgender and Intersex Identities and Sex Discrimination - the Need for Strict Scrutiny

Article excerpt

Sex is documented, administered, and adjudicated via a network of statutes, regulations, and administrative rules that is astonishing for both its inconsistencies and its complexity. (1) Courts and agencies tasked with issuing identity documents, or determining who qualifies as a spouse for the purposes of marriage licenses or same-sex marriage bans, routinely adjudicate the question of sex--employing "common sense" approaches to determine whether a person is "male" or "female." (2) For transgender persons seeking new drivers' licenses or other forms of official recognition, (3) the folkways of sex can be particularly dire because courts have naturalized both the idea of binary sex and the impossibility of sex reassignment. In refusing to recognize a transgender woman as a legal woman, a Texas appeals court exclaimed, "There are some things we cannot will into being. They just are." (4) The Kansas Supreme Court followed suit, stating: "[W]e recognize that J'Noel has traveled a long and difficult road. J'Noel has undergone electrolysis, thermolysis, tracheal shave, hormone injections, extensive counseling, and reassignment surgery. Unfortunately, after all that, J'Noel remains a transsexual, and a male." (5)

Yet, despite our collective belief in the inevitability of sex and the categories "male" and "female," sex identities evade binary categorization and neat, tidy description even at the level of biology. Every year, thousands of infants are born intersex, with bodies that fuse the chromosomes, hormones, gonads, genitals, internal sex organs, and secondary sex characteristics typically thought to be defining of "male" and "female." (6) Every year, thousands of adults also seek to change their sex--resisting the notion that sex is fixed and accurately determined at birth. (7) In addition, even those who grow up secure in their identities as "male" or "female" are assigned to a sex category, not by karyotyping, (8) but by cursory inspection of their genitals at birth, so that their anxious parents can know whether to swaddle them in a pink or blue blanket.

These phenomena challenge the very foundation of sex; indeed, as one researcher has noted, "any close study of sexual anatomy results in a loss of faith that there is a simple, 'natural' sex distinction that will not break down in the face of certain anatomical, behavioral, or philosophical challenges." (9) Faced with the true complexity of sex identity and sex difference, binary sex classifications can only be viewed as a social construct that disciplines the body in ways that defy logic, compassion, and medical science. (10)

This Article breaks new ground by proposing a new equal protection doctrine that takes cognizance of the realities of sex, and regards sex categories as a suspect classification, not based on immutability, but on ground of sex categories' very imprecision. In arguing that sex should be accorded strict, not intermediate, scrutiny, this Article takes note of the parallels between sex discrimination and race discrimination--parallels that emerge when binary sex classification is understood to be neither innate nor natural. Viewed through this lens, demanding that people be officially classified by sex is just as invidious as maintaining registries of racial composition, a now disavowed practice. (11)

Part I of this Article explores myths and realities of sex difference and examines how binary conceptions of sex break down. Turning to transgender and intersex identities, this Part explores the way that science and medicine manage and discipline unruly bodies in an effort to deny the pluralism of sexual identities that truly exists. It also focuses on law's complicity--examining how courts and administrative agencies have naturalized the notion of "male" and "female" and perpetuated myths of innate sex difference.

Part II urges the adoption of a new equal protection standard for sex--a constitutional doctrine that recognizes the way that the categories of male and female are socially constructed, and regards sex classifications as suspect because of their arbitrariness. …

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